Opinion
CIVIL ACTION NO. 06-10458-RCL.
July 12, 2007
Kevin D. Solonsky, Securities Exchange Commission, Washington, DC, representing United States Securities and Exchange Commission, Defendant.
Gerald Bryan Duggan, Framingham, MA, Plaintiff.
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND ON PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT
I. INTRODUCTION
The plaintiff, Gerald Bryan Duggan ("Duggan"), has brought this action pro se under the Freedom of Information Act, 5 U.S.C. § 552 et seq. ("FOIA"). He claims that the defendant, United States Securities and Exchange Commission ("SEC" or "Commission"), improperly withheld certain records responsive to his requests for documents, improperly classified him for purposes of charging fees in connection with his FOIA requests, and wrongfully denied his request for a total fee waiver. By his Complaint, Duggan is seeking an order directing the SEC to release the information that he claims has been wrongfully withheld. He also is seeking declaratory and injunctive relief declaring the plaintiff to be a "Level III requester" so that he would only be responsible for limited charges in the future, and compelling the defendant to grant him a total fee waiver with respect to the documents at issue in the instant matter.
This matter is presently before the court on the "Motion for Summary Judgment of Securities and Exchange Commission" (Docket No. 14) by which the SEC is seeking summary judgment in its favor on all of Duggan's claims. Also before the court is the "Plaintiff's Mot[i]on for Declaratory Judgment" (Docket No. 11) by which Duggan is seeking a ruling declaring him to be a Level III requester with respect to two FOIA requests that he submitted to the SEC in April 2005. The threshold issue raised by the parties' motions is whether the SEC has made all of the documents available that are responsive to Duggan's FOIA requests or whether the Commission is continuing to withhold documents over which it previously claimed an exemption from production.
This court finds that the SEC has presented undisputed evidence that it has produced all of the requested documents, and that therefore, it is entitled to summary judgment on all of the plaintiff's claims alleging improper withholding of agency records. Furthermore, the SEC has established that Duggan has not been charged any fees for the review and production of material responsive to his FOIA requests, and that the Commission will not be producing additional documents in response to these requests. Consequently, the plaintiff's requester status and fee waiver claims, as well as his motion for a declaratory judgment regarding his fee classification, are moot. Accordingly, this court recommends to the District Judge to whom this case is assigned that the SEC's motion for summary judgment be ALLOWED and that Duggan's motion for declaratory judgment be DENIED.
II. STATEMENT OF FACTS Background
The facts are derived from the following: (1) Statement of Undisputed Facts in Support of Securities and Exchange Commission's Motion for Summary Judgment (Docket No. 16) ("DF"); (2) Plaintiff's Statement of Disputed Material Facts Pursuant to Local Rule 56.1 (Docket No. 20) ("PF"); (3) Corrected Declaration of Frank A. Henderson in Support of Securities and Exchange Commission's Motion for Summary Judgment (Docket No. 34) ("Henderson Decl."); (4) Declaration of Donald C. Chumley in Support of Securities and Exchange Commission's Motion for Summary Judgment (Docket No. 52) ("Chumley Decl."); (5) Declaration of Noelle L. Frangipane in Support of Securities and Exchange Commission's Motion for Summary Judgment (Docket No. 53) ("Frangipane Decl."); (6) Declaration of Celia L. Jacoby in Support of Securities and Exchange Commission's Motion for Summary Judgment (Docket No. 54) ("Jacoby Decl."); (7) Second Declaration of Frank A. Henderson in Support of Securities and Exchange Commission's Motion for Summary Judgment (Docket No. 55) ("2d Henderson Decl."); (8) Declaration of Gerald B. Duggan Regarding Miscellaneous Matters (Docket No. 21) ("Duggan Decl."); (9) Declaration of Gerald B. Duggan Regarding Xylogics Litigation (Docket No. 23) ("2d Duggan Decl."); (10) Declaration of Gerald B. Duggan Regarding Pre-2005 FOIA Requests (Docket No. 24) ("3d Duggan Decl."); (11) Declaration of Gerald B. Duggan Regarding 2005 Requests ("4th Duggan Decl."); and (12) exhibits attached to each of Duggan's Declarations ("Pl.'s Ex. ___"). This court has also, on this date, ruled on plaintiff's motion to strike, plaintiff's motion for further discovery pursuant to Fed.R.Civ.P. 56(f), and plaintiff's motion to compel, which rulings further define the scope of the summary judgment record.
This action has arisen as a result of the plaintiff's requests for SEC documents relating to three companies known as Wellfleet Communications ("Wellfleet"), Synoptics, Inc. ("Synoptics") and Bay Networks. Wellfleet merged with Synoptics in 1994 to form Bay Networks, and, in 1995, Bay Networks acquired a corporation known as Xylogics. (Compl. (Docket No. 1) ¶¶ 5-7). In February 1996, the SEC initiated an investigation of certain individuals whom the agency suspected of having engaged in insider trading of Xylogics stock based on information concerning the imminent acquisition of Xylogics by Bay Networks. (Id. ¶¶ 8, 9; Answer (Docket No. 4) ¶¶ 8, 9). The investigation culminated in a lawsuit, which the SEC filed in the United States District Court for Northern District of California in June 2000, and which ultimately was terminated in the spring of 2003. (Compl. ¶ 11; Answer ¶ 11).
As detailed more fully below, over the course of several years Duggan made several requests for documents relating to Wellfleet, Synoptics and Bay Networks. While documents were initially withheld, they were eventually produced. The SEC contends that all documents which were initially withheld were kept by the SEC under the umbrella investigation "In the Matter of Xylogics, Inc.," internal file number HO-3141 (the "Xylogics investigation"). While it is undisputed that the SEC eventually produced all the documents from the Xylogics investigation, Duggan is suspicious that there are other documents relating to Wellfleet, Synoptics and Bay Networks which were not included in the Xylogics investigation file, and which were not produced.
As detailed herein, Duggan's suspicions are insufficient to refute the affidavits submitted by the SEC, which establish that the documents responsive to Duggan's FOIA requests have been produced. Consequently, the SEC's motion for summary judgment should be allowed, and Duggan's motion for declaratory judgment should be denied.
Duggan's 2000 FOIA Requests
On March 7, 2000, Duggan sent a letter to the SEC's FOIA Office in which he requested all documents pertaining to Wellfleet and Synoptics for the time period from 1980 to the present, and pertaining to Bay Networks for the time period from 1990 to the present. (DF ¶ 1; Pl.'s Ex. AA). The request was designated FOIA Request No. 2000-642. (Pl.'s Ex. AC). On April 26, 2000, the SEC sent Duggan a letter informing him that the agency had documents responsive to his request. (DF ¶ 1-2). It also informed Duggan that it was withholding certain "responsive nonpublic investigative records" pursuant to FOIA Exemption 7A, 5 U.S.C. § 552(b)(7)(A), 17 C.F.R. 200.80(b)(7)(i)(A). (Pl.'s Ex. AC). This exemption applies to "records or information compiled for law enforcement purposes" to the extent that their release "could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A) ("Exemption 7A"). The SEC notified Duggan that the status of the agency's enforcement proceedings could change and result in the disclosure of some of the exempt records, and that Duggan could request the exempt documents again in six months and at six-month intervals thereafter. (Pl.'s Ex. AC). As detailed in the Declaration of Donald Chumley, Special Counsel to the SEC who provided information in connection with this response, the documents which were being withheld pursuant to Exemption 7A were part of the Xylogics investigation file. (See Chumley Decl. ¶¶ 1-2, 4-5, 12).On November 8, 2000, Duggan sent three separate FOIA requests to the SEC in which he requested "information that was withheld pursuant to a 7A exemption in April" with respect to Wellfleet, Bay Networks and Synoptics, respectively. (Pl.'s Ex. AD, AE, AF). He did not request any of the responsive documents that the SEC had offered to produce in April 2000, nor did he seek production of documents that the SEC had withheld pursuant to other exemptions. (See id.). The record establishes that the documents Duggan was seeking consisted only of documents from the Xylogics investigation file. (See, e.g., 2d Henderson Decl. ¶¶ 19, 20; Chumley Decl. ¶¶ 6-7).
The SEC, in a letter dated November 27, 2000, assigned FOIA Request No. 2000-2469 to all three of Duggan's requests. (Pl.'s Ex. AG). It also informed Duggan that it was responding to his requests for all three companies and that it was continuing to withhold the responsive documents pursuant to Exemption 7A. (Id.). The SEC stated that "Wellfleet Communications, Inc. and Synoptics Communications, Inc. are former names of Bay Networks, Inc. Therefore, we are responding to your requests for all three names." (Id.).
Duggan appealed the SEC's decision in a letter dated December 4, 2000. (DF ¶ 6; Pl.'s Ex. AH). Therein, he asserted that the SEC had "failed to indicate for which of the three [companies] 7A exemption information existed and for which no such information existed" and he requested that he be informed "as to whether 7A exemption records exist for each of the three companies separately." (Pl.'s Ex. AH). He further requested that "any exclusions that may have been claimed be reviewed for validity and that the 7A exemption(s) be reviewed for validity." (Id.). The SEC denied Duggan's appeal, finding that the FOIA Office had properly responded to his requests with respect to all three companies and had properly withheld information pursuant to Exemption 7A. (Pl.'s Ex. AI).
Celia L. Jacoby was the principal SEC attorney who prepared the response to Duggan's appeal. (Jacoby Decl. ¶ 4). She has submitted a Declaration in the instant case detailing the search for documents responsive to Duggan's FOIA request. (See id. ¶ 5). As Attorney Jacoby attests, her investigation confirmed that the documents identified in response to Duggan's FOIA requests and withheld pursuant to Exemption 7A were from the investigation entitled "In the Matter of Xylogics, Inc." and "from informal inquiries that led to the Xylogics investigation," and were maintained under the number "HO-3141." (Id. ¶ 5).
Duggan's 2002 FOIA Requests
On September 19, 2002, Duggan again sent three separate FOIA requests to the SEC seeking the information that previously had been withheld pursuant to Exemption 7A with respect to each of Wellfleet, Bay Networks and Synoptics. (Pl.'s Ex. AJ, AK, AL). This time, the SEC responded to each request separately, assigning them Request Nos. 2002-3526, 2002-3516 and 2002-3521, respectively. (Pl.'s Ex. AM, AQ, AN). With respect to Duggan's inquiries concerning Wellfleet and Bay Networks, the SEC responded that the documents were still being withheld pursuant to Exemption 7A. (Pl.'s Ex. AM, AQ). However, in response to the inquiry regarding Synoptics, the SEC informed Duggan that all of the records compiled on Synoptics had been discarded following the closure of the agency's preliminary inquiries regarding Synoptics in 1994, and that no such records could be found. (Pl.'s Ex. AN). Agency records do not reveal why the SEC did not inform Duggan of the closed Synoptics investigation in response to his prior FOIA requests. (2d Henderson Decl. ¶ 13).
In October 2002, Duggan appealed the SEC's decisions to withhold the Wellfleet and Bay Networks documents under Exemption 7A. (Pl.'s Ex. AO, AR). On appeal, Duggan requested that the SEC review the validity of all exemptions and exclusions that the Commission had asserted concerning his FOIA requests. (Id.). He also challenged the applicability of Exemption 7A to the Wellfleet documents, asserting that since Wellfleet had ceased to exist after it merged with Synoptics on October 21, 1994, any claims the SEC could have asserted against Wellfleet employees would have been barred by the statute of limitations after October 21, 2000, and the disclosure of documents could not possibly interfere with an on-going enforcement proceeding. (Pl.'s Ex. AO). The SEC, by letters dated December 11, 2002, denied the plaintiff's appeals, finding that the FOIA Office had properly continued to exert Exemption 7A. (Pl.'s Ex. AT, AU). Again, the record establishes that the only documents the SEC withheld from Duggan in response to his 2002 FOIA requests were documents from HO-3141, the Xylogics investigation. (See Jacoby Decl. ¶ 6).
Duggan's 2005 FOIA Requests
On April 6, 2005, Duggan separately renewed his FOIA requests for records pertaining to Wellfleet and Bay Networks that the SEC had been withholding pursuant to Exemption 7A. (DF ¶ 11; Pl.'s Ex. AV, AW). The SEC assigned the inquiries Request Nos. 05-05038 and 05-05039, and responded in letters dated April 21, 2005 and May 5, 2005 that it was continuing to withhold responsive documents under Exemption 7A. (Pl.'s Ex. AX, AY). The SEC also sent Duggan an invoice for $28 to cover the cost of conducting a search in connection with his requests. (Pl.'s Ex. AX).Duggan appealed the SEC's decisions to withhold the responsive documents, arguing that given the amount of time that had passed since Wellfleet and Bay Networks had ceased to exist, Exemption 7A should no longer be applicable. (Pl.'s Ex. AZ, BB). The SEC responded to Duggan's appeals by letter dated June 29, 2005. (Pl.'s Ex. BD). Therein, the SEC's Associate General Counsel, Richard M. Humes, stated that "[a]s the records relating to both companies relate to one enforcement investigation, I am responding to both requests at this time." (Id.). Attorney Humes further informed Duggan that the agency's investigation "will no longer be impaired by disclosing certain records from that file" and that he was remanding the plaintiff's requests to the FOIA Office for further processing. (Id.).
Noelle L. Frangipane was the principal SEC attorney who prepared the response to Duggan's 2005 FOIA appeals. (Frangipane Decl. ¶ 4). She has also filed a Declaration confirming that the only documents withheld from Duggan in response to Request Nos. 2005-05038 and 2005-05039 were documents from the Xylogics investigation files. (Id. ¶ 5).
On August 2, 2005, following the remand, the SEC informed Duggan that it had identified 10 to 15 boxes of investigatory records that were responsive to Request Nos. 05-05038 and 05-05039, and that the fee for reviewing those records for possible release would be about $4,284 to $5,404, not including copying costs. (Pl.'s Ex. BE). Duggan responded by letter dated August 11, 2005. (Pl.'s Ex. BF). Therein, he wrote that although he had been advised that all the documents which had been withheld "related to a single insider trading investigation that was opened in February, 1996," he found "this unlikely" given that Wellfleet no longer existed as of that date, and there was no reason to file "records pertaining to an investigation into insider trading in Bay Networks stock under the name of a corporation whose stock was not involved in the alleged insider trading," i.e., Xylogics. (Id. at 1). Duggan has steadfastly refused to accept the SEC's representations that all of the responsive documents relating to Xylogics and its predecessor companies were maintained under one SEC file number, and, therefore, repeatedly argues that other documents must exist which are not being produced. (See, e.g., PF ¶ 20 ("[s]ome or all of the records withheld by the FOIA Office pursuant to a 7A exemption with respect to requests 05-05038 and 05-05039 were non-Xylogics records and it is most unlikely that the 7A exemption has ever been lifted from these records.")). Other than Duggan's repeated assertion that such a filing system is illogical, however, he has put forth no facts to challenge the SEC's repeated representations that no files other than those it previously offered to produce in 2000 and those it offered to produce in 2005 existed.
In his response to the SEC, Duggan also challenged the SEC's position that he would need to pay for any review charges, asserting that the Commission had wrongfully classified him as a Level I requester, that is someone who seeks records for commercial use. (Pl.'s Ex. BF). Despite these objections, Duggan offered to pay the processing fees necessary to obtain certain specified transcripts from the "February 1996 insider trading investigation." (Id.). On October 3, 2005, he ultimately received one transcript, which was redacted to protect certain personal information and was provided free of charge. (DF ¶ 17; Pl.'s Ex. BK).
FOIA requesters are assessed fees based on their fee status. (DF ¶ 20 (citing 5 U.S.C. § 552(a)(4)(A) and 17 C.F.R. § 200.80(e)(10)). The FOIA Office classifies each requester as a Level I, Level II or Level III requester, and applies different fees depending on the classification. (Id.; see also 17 C.F.R. § 200.80(e)(10)). Duggan contends that he is a Level III requester, i.e., one who is not seeking the records for commercial use (Level I), and is not an educational, noncommercial scientific institution, or news media (Level II).See 5 U.S.C. § 552(a)(4)(A)(ii)(III) (2007) (a Level III request is "any request not described in (I) or (II)").
Consistent with his contention that the SEC has improperly refused to produce documents responsive to his FOIA requests that are not among the Xylogics investigation records, on October 19, 2005, Duggan made a second appeal from the SEC's 2005 decision in which he challenged the SEC's "improper withholding of the non-Xylogics records that were [withheld] pursuant to a 7A exemption with respect to request number 05-05039." (PF ¶ 25). To support his contention that documents were not being produced, Duggan dissected the language used in various pieces of correspondence, and challenged the SEC's decision to respond to his requests separately on some occasions, and in a single response on other occasions. (Pl.'s Ex. BL). However, the SEC interpreted the appeal as a challenge to the redactions to the transcript that it had produced to Duggan from the Xylogics investigation. (Henderson Decl., Ex. 2). The appeal was denied on July 24, 2006. (Id.).
Duggan's Challenge to His Fee Status
By letter dated August 31, 2005, Duggan appealed his fee requester classification. (Pl.'s Ex. BJ). Therein, he asserted that he "hope[d] to use the requested records to expose wrongdoing that has not been prosecuted because of ineffective, and perhaps dishonest and corrupt, people who are among those responsible for law enforcement and regulatory functions in the U.S. federal government," as a result of which he should have been classified as a Level III requester. (Id.). The SEC did not respond to this appeal. (PF ¶ 28). However, it contends that the appeal became moot because Duggan was not charged any fees for the production of the one transcript that he obtained from the Xylogics investigation records. (DF ¶ 23).
Duggan's Fee Waiver Request
In correspondence to the SEC dated August 29, 2005, Duggan applied for a fee waiver with respect to each of his two 2005 FOIA requests. (Pl.'s Ex. BH). Under FOIA, an agency may waive or reduce fees for FOIA requesters when the disclosure of documents is in the public interest and is not primarily in the commercial interest of the requester. (See DF ¶ 24 (citing 5 U.S.C. § 552(a)(4)(A)(iii); 17 C.F.R. § 200.80(e)(4)(i)). The FOIA regulations set forth six factors to be considered in determining whether these requirements have been met. (Id. (citing 17 C.F.R. § 200.80(e)(4)(ii), (iii)).
On November 15, 2005, after receiving no reply to his request for a fee waiver, Duggan appealed to the SEC General Counsel's office. (Pl.'s Ex. BP, BQ). The SEC responded by letter dated December 16, 2005, in which it stated that it was waiving the $28 charge for research in connection with Duggan's 2005 FOIA requests and that therefore no fees would be assessed in the processing of his requests. (Pl.'s Ex. BT). The SEC further stated that "all of the records responsive to your requests have been addressed. There are no additional responsive records." (Id.).
Although the plaintiff has presented evidence that he sent the SEC a check for $28, it is not disputed that the SEC waived this fee. (See PF ¶ 29; Duggan Decl., Ex. EA; Pl.'s Ex. BT, BU). The SEC agrees that if Duggan paid the Commission $28 and did not receive a refund, he is entitled to a refund. (Def.'s Reply Mem. (Docket No. 39) at 3).
Subsequently, on January 5, 2006, Duggan wrote to the SEC to request clarification as to the scope of the fee waiver. (Pl.'s Ex. BU). After receiving no response, Duggan appealed. (Pl.'s Ex. BV, BX). He reiterated his position that the SEC was withholding records, other than the Xylogics records, that were responsive to his 2005 FOIA requests, and he stated that he was appealing the SEC's decision on his fee waiver request to the extent the Commission was only applying the waiver to the Xylogics records. (Id.). Specifically, Duggan claimed that "the SEC should grant a total fee waiver to any additional records that are eventually recognized as responsive." (Id.).
The SEC replied to Duggan's appeal on February 7, 2006. (Pl.'s Ex. BZ). The SEC again noted that "the Commission's investigation of Xylogics Inc., in which Wellfleet Communications and Bay Networks are named, is the only investigation responsive to your FOIA requests (05-05038 and 05-05039). . . ." (Id.). The SEC renewed its offer to produce the additional records from the Xylogics investigation which it had identified in 2005, and urged the plaintiff to address in writing the six factors necessary to determine whether a fee waiver would be appropriate. (Id.).
The Instant Litigation
Duggan filed the instant action on March 14, 2006. (PF ¶ 30). By his Complaint, Duggan claims that the SEC is improperly withholding agency records that are responsive to his FOIA requests for information regarding Wellfleet and Bay Networks and are not included among the Xylogics records. (Counts I-VI). He also claims that the SEC has improperly denied him the right to be classified as a Level III requester (Counts VII-VIII), and has improperly denied his request for a total fee waiver with respect to all records responsive to his 2005 FOIA requests. (Counts IX-X). For the reasons that follow, the SEC is entitled to summary judgment on all of these claims, and Duggan's motion for a declaratory judgment on his fee requester claims should be denied as moot.
III. ANALYSIS
A. Summary Judgment Standard of Review
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "A dispute of fact is only genuine if there is sufficient evidence to permit a reasonable jury to resolve the point in the nonmoving party's favor." Whitehouse v. U.S. Dep't of Labor, 997 F. Supp. 172, 174 (D. Mass. 1998). Furthermore, "[w]hile all reasonable inferences must be indulged in favor of the non-moving party, a fact is considered material only when it has the potential to affect the outcome of the suit under applicable law." Id. (quotations and citations omitted).
"FOIA cases are often decided on summary judgment." N. Dartmouth Props., Inc. v. Dep't of Hous. Urban Dev., 984 F. Supp. 65, 67 (D. Mass. 1997). "Summary Judgment is called for in FOIA cases when `the defending agency . . . prove[s] that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the [FOIA's] inspection requirements.'" Gillin v. IRS, 980 F.2d 819, 821 (D.N.H. 1992) (quoting Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982)) (alterations in original). Moreover, "[s]ummary judgment in a FOIA case may be granted solely on the basis of agency affidavits if they are clear, specific, and reasonably detailed." N. Dartmouth Props., 984 F. Supp. at 67. In this case, both the evidence of the parties' communications regarding Duggan's FOIA requests and the SEC's affidavits demonstrate that all of the documents that fall within the scope of Duggan's FOIA requests have been produced. The material facts are not in dispute and summary judgment is appropriate in this case.
B. Counts I-VI: Alleged Improper Withholding of Agency Records
In Counts I-VI of his Complaint, Duggan alleges that the SEC is improperly withholding records responsive to his FOIA Request Nos. 2000-2469, 2002-3526, 2002-3516, 05-05038 and 05-05039. He claims that these records are not among the records from the Xylogics investigation, but are maintained separately and should be released. (See Compl. ¶¶ 161, 171, 181, 191, 201, 211). The SEC denies that any such records exist and asserts that it has produced all of the documents that Duggan requested. (Def.'s Mem. (Docket No. 15) at 2). All of the evidence supports the SEC's position.
As detailed more fully above, the record shows that, on several occasions, the SEC informed Duggan that his requests for records concerning Wellfleet and Bay Networks related to a single enforcement investigation. (See Pl.'s Ex. BD, BT, BZ). The Commission also made it clear that the relevant enforcement investigation was the Xylogics investigation. (Pl.'s Ex. BZ). The affidavits submitted by the SEC further confirm that all of the documents responsive to the plaintiff's FOIA requests are part of the SEC's records from the Xylogics investigation, and establish that the only documents withheld from Duggan in response to his FOIA requests consisted of records from the Xylogics investigation which were maintained in file HO-3141. (See, e.g., Jacoby Decl. ¶¶ 5-6; Frangipane Decl. ¶ 5; 2d Henderson Decl. ¶ 20; Chumley Decl. ¶ 12).
Duggan argues that the affidavits submitted by the SEC are inadequate to support summary judgment in the defendant's favor. He complains that certain of the declarations were not based on personal knowledge. (See Pl.'s Resp. Mem. (Docket No. 57) at 2, 6-7). He further contends that the witnesses' statements are insufficiently detailed and are conclusory. (Id. at 3, 5, 7-9). This court disagrees.
"[A]n agency need not submit an affidavit from the employee who actually conducted the search. Instead, an agency may rely on an affidavit of an agency employee responsible for supervising the search." Maynard v. CIA, 986 F.2d 547, 560 (1st Cir. 1993). Here, the SEC submitted the declarations of Celia L. Jacoby and Noelle L. Frangipane, the principal attorneys responsible for the preparation of responses to Duggan's FOIA appeals. (Jacoby Decl. ¶ 4; Frangipane Decl. ¶ 4). It also submitted a declaration from Frank A. Henderson, the FOIA/Privacy Act Branch Chief for the SEC's Office of Filings and Information Services ("OFIS") since 2000. (2d Henderson Decl. ¶ 1). In his capacity as Branch Chief, Mr. Henderson is responsible for determining what documents are responsive to FOIA requests, for determining which exemptions apply and for preparing FOIA responses. (Id. ¶ 2). His declaration was based upon his personal knowledge and upon information that he obtained while working in his official capacity. (Id. ¶ 6). Similarly, the Commission submitted an affidavit from Donald C. Chumley, Special Counsel for the SEC's Division of Enforcement ("DOE") since 1975. (Chumley Decl. ¶ 1). Mr. Chumley serves as a liaison between the OFIS and DOE, and is responsible for assisting OFIS in responding to FOIA requests for DOE documents. (Id. ¶ 2). Mr. Chumley also made his declaration based both upon his personal knowledge and upon knowledge obtained in his official capacity. (Id. ¶ 3). "These affidavits, although partly second-hand, are sufficient to satisfy the government's burden of submitting affidavits of responsible agency officials." Maynard, 986 F.2d at 560.
Duggan's arguments about the sufficiency of the information contained in the affidavits is also unpersuasive. The issue whether or not all of the documents responsive to Duggan's FOIA requests were part of a single SEC enforcement investigation file is limited and straightforward, and the SEC's affidavits address this question in sufficient detail. For example, but without limitation, the affidavits from Attorneys Jacoby and Frangipane explain what material the witnesses reviewed to determine which documents were withheld from the plaintiff pursuant to Exemption 7A. Additionally, Mr. Henderson described all of the SEC investigations that concerned Bay Networks, Synoptics and Wellfleet, and explained how Duggan's FOIA requests related to those investigations. Moreover, the testimony presented by these affidavits is consistent with the representations that the SEC made to Duggan in its correspondence. Accordingly, this court concludes that the defendant's affidavits are sufficient to support its motion.
Duggan argues that there is evidence in the record that raises a genuine issue of fact as to whether the SEC has continued to withhold responsive documents. He has found ambiguities based on his analysis of the language used in various letters and documents submitted by the SEC, as well as the chronology of events. (See generally Pl.'s Opp. Mem. (Docket No. 19) at 12-13). However, Duggan's suspicions do not constitute evidence and are insufficient to refute the Commission's assertions. "An agency's affidavit is accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." Maynard, 986 F.2d at 560. Because Duggan has not presented any evidence other than "pure speculation" to rebut the SEC's affidavit testimony, the defendant is entitled to summary judgment on Counts I-VI. C. Counts VII-X: Claims Relating to Requester Fees
Because this court finds that the SEC has presented undisputed evidence that it did not withhold any records responsive to Duggan's FOIA requests and is therefore entitled to summary judgment on Counts I-VI, this court declines at this time to address the SEC's argument that Duggan failed to exhaust his administrative remedies with respect to those claims. (See Def.'s Mem. at 4 n. 3).
The SEC has moved for summary judgment on Duggan's claims relating to his fee status and fee waiver requests on the grounds that those claims are moot. (Def.'s Mem. at 4-5). This court finds that in light of the SEC's decision to waive the $28 search fee, its production of a transcript from the Xylogics investigation without charge, and the fact that the SEC has no other documents to produce in response to the plaintiff's FOIA requests, the fee related claims are moot. See Hall v. CIA, 437 F.3d 94, 99 (D.C. Cir. 2006) (agency's decision to release documents without seeking payment moots plaintiff's arguments that denial of fee waiver was incorrect); Long v. Bureau of Alcohol, Tobacco Firearms, 964 F. Supp. 494, 497-98 (D.D.C. 1997) (agency's grant of fee waiver moots claims for fee waiver and determination of requester status). Even assuming Duggan's fee related claims have merit, this court may not order the SEC to do something it has already done, namely, waive the FOIA fees in the instant case. See Better Gov't Ass'n v. Dep't of State, 780 F.2d 86, 91 (D.C. Cir. 1986). Accordingly, the SEC is entitled to summary judgment on Counts VIII-X of Duggan's Complaint.
D. Plaintiff's Motion for Declaratory Judgment
By his motion for a declaratory judgment, the plaintiff is seeking an order declaring him to be a Level III requester with respect to FOIA Request Nos. 05-05038 and 05-05039. However, as described above, Duggan's claims concerning his requester status are moot. Therefore, the motion should be denied.
FOIA does not create an independent right to a status determination once a fee waiver has been granted. See Long, 964 F. Supp. at 498. Moreover, to the extent the plaintiff is seeking a declaration of his status with respect to future requests, that issue is not ripe. See id. "Any declaration of plaintiff['s] status by the Court at this time would be tantamount to an advisory opinion." Id. That is not something that federal courts can provide. See Better Gov't Ass'n, 780 F.2d at 91.
IV. CONCLUSION
For all of the reasons detailed herein, this court recommends to the District Judge to whom this case is assigned that the "Motion for Summary Judgment of Securities and Exchange Commission" (Docket No. 14) be ALLOWED and that the "Plaintiff's Mot[i]on for Declaratory Judgment" (Docket No. 11) be DENIED.
The parties are hereby advised that under the provisions of Fed.R.Civ.P. 72 any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 10 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this Rule shall preclude further appellate review. See Keating v. Sec'y of Health Human Servs., 848 F.2d 271, 275 (1st Cir. 1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-605 (1st Cir. 1980); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir. 1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); see also Thomas v. Arn, 474 U.S. 140, 153-54, 106 S. Ct. 466, 474, 88 L. Ed. 2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir. 1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir. 1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir. 1998).